Florida’s ‘Don’t Say Gay’ Law: Damaging to LGBTQ+ Students, Parents, and Teachers

Florida Governor Ron DeSantis signed the controversial “Parental Rights in Education” bill into law on Monday. The bill, dubbed the ‘Don’t Say Gay’ bill, prohibits instruction on sexual orientation and gender identity from kindergarten through 3rd grade. The bill’s language states: “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.”[1] Parents can sue school districts over violations.

The legislation also requires schools to notify parents of any health or support services provided to their kids in school and gives them an opportunity to deny the services on behalf of their children.

The new law further marginalizes LBGTQ+ communities and puts youth who identify as members of that community at risk. A CDC study, the Youth Risk Behavior Surveillance, shows that many LBGTQ+ young people are susceptible to higher health and suicide risks than their classmates.[2] The Trevor Project reports that “when those kids are given access to spaces that affirm their gender identity, they report lower rates of suicide attempts.”[3] Taking away a potentially safe space at school could lead to devastating results.

On Thursday, a group of LBGTQ+ advocates sued Florida and the DeSantis administration in federal court over the bill.[4] Lawyers representing the group argue that the bill violates the First and 14th Amendments to the United States Constitution, as well as federal Title IX rules. The complaint attacks “vagueness” in the law and states “[t]he law not only stigmatizes and silences those vulnerable students, exacerbating risks to their welfare, but also threatens school officials who foster a safe and inclusive environment for them.”[5]

Teachers especially fear the effect this law will have on the way they teach and what their students share. In an article shared by NPR, one Florida teacher says, “[i]t makes wonder, when I talk about families in my classroom, am I going to be violating this law because the children were having discussions about what their family looks like… I’m very fearful that this law is going to just open it up for a lot of more things to start being discriminated against.”[6]


[1] Jaclyn Diaz, Florida’s governor signs controversial law opponents dubbed ‘Don’t Say Gay”, NPR (March 28, 2022), https://www.npr.org/2022/03/28/1089221657/dont-say-gay-florida-desantis.

[2] Madeleine Roberts, New CDC Data Shows LGBTQ Youth are More Likely to be Bullied Than Straight Cisgender Youth, Human Rights Campaign (August 26, 2020), https://www.hrc.org/news/new-cdc-data-shows-lgbtq-youth-are-more-likely-to-be-bullied-than-straight-cisgender-youth

[3] Jaclyn Diaz, Florida’s governor signs controversial law opponents dubbed ‘Don’t Say Gay”, NPR (March 28, 2022), https://www.npr.org/2022/03/28/1089221657/dont-say-gay-florida-desantis.

[4] Andrew Atterbury, LGBTQ advocates sue over Florida’s ‘Don’t Say Gay’ bill, Politico (March 31, 2022), https://www.politico.com/news/2022/03/31/lgbtq-advocates-sue-florida-00022001.

[5] Id.

[6] Melissa Block, Teachers fear the chilling effect of Florida’s so called ‘Don’t Say Gay’ law, NPR (March 30, 2022), https://www.npr.org/2022/03/30/1089462508/teachers-fear-the-chilling-effect-of-floridas-so-called-dont-say-gay-law.

Texas Tops the Nation in Teen Births

Texas ranks #9 in states with the highest teenage birth rate.[1] A whopping 1 in 6 of Texas teens who gave birth in Texas in 2020 had already given birth before.[2] This comes after Texas passed the controversial Senate Bill 8 which greatly reduced abortion access in Texas.[3]Access to abortion is only half the battle for those trying to reduce unplanned pregnancy in teenagers. Birth control also plays a critical role in protecting teens from unplanned pregnancies.

Birth control options are extremely limited for Texas teens. Texas is one of the states where teens under 18 need parental consent to go on contraception.[4] A teen living independently with their own child needs a parent’s permission to go on contraception. Birth control is a taboo subject between many teens and parents, leaving some teens to wait until it’s too late. Teens who bring up contraception with their parents can be shut down. Parental permission is an even bigger hurdle for teens not living with their parents and teens in foster care who can not procure a parent’s consent.       

Contraception is not covered for teens on CHIP, the state’s health insurance program, and they must instead seek coverage by the state funded Family Planning Program. Parental permission is also required under the Family Planning Program.[5] CHIP covers teens through their 19th birthday. [6] An 18 year old still enrolled in CHIP will not have birth control covered by their insurance and must use the Family Planning Program. The FPP’s opt-in style contraception coverage creates a gap between a teen needing birth control and having that need met. This gap leaves teens vulnerable to unplanned pregnancy while they are trying to be responsible with their sexual health.

Texas attorney general Ken Paxton wrote an opinion targeting families who seek gender-affirming healthcare, particularly hormone blockers, for their transgender child. [7] This spells bad news for birth control, which usually blocks certain pregnancy-inducing hormones. The opinion encourages family services to investigate families suspected of providing gender-affirming care to their child, and is supported by a letter to Texas family services from Governor Greg Abott.[8] The opinion does not outlaw hormone blocking medications for teens. It’s aim is to scare families away from certain healthcare for teenagers. The opinion targets puberty blocking drugs, but it may discourage transgender teens and their parents from going to birth control appointments out of fear of being reported by their doctor. As a result, trans youth face a new barrier to contraception. The attack on hormonal medications for teens leaves some contraceptives vulnerable to similar arguments, as they both use hormones that affect the reproductive system. If the government is successful with this intrusion into family healthcare, birth control could be next. 

If Texas wants to reduce the number of teens giving birth, it must recognize a teen’s right to make their own reproductive health choices. The state can start by ensuring contraception is covered by CHIP, which would allow teens to get a birth control prescription filled soon after visiting their primary care doctor.  Eliminating parental consent to birth control might be a long shot in the lone star state, but drastic action may be the answer to a drastic problem. It’s clear that Texas’ current approach to contraception is failing its children.


[1] https://www.cdc.gov/nchs/pressroom/sosmap/teen-births/teenbirths.htm

[2] https://www.texastribune.org/2022/02/21/texas-teenage-pregnancy-abortion/

[3] https://www.texastribune.org/2022/02/21/texas-teenage-pregnancy-abortion/

[4] https://www.texastribune.org/2022/02/21/texas-teenage-pregnancy-abortion/

[5] https://www.texastribune.org/2022/02/21/texas-teenage-pregnancy-abortion/

[6] https://www.texastribune.org/2022/02/21/texas-teenage-pregnancy-abortion/

[7] https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0401.pdf

[8] https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf

October is for Youth Justice Awareness Month

October is Youth Justice Awareness Month. With that in mind, the entries for this month will focus primarily on issues related to the juvenile justice system. The following post offers a brief discussion on the right to counsel in juvenile delinquency proceedings.

In 1967, the Supreme Court recognized juveniles’ right to Due Process under the 14th Amendment in the landmark case In re Gault. This decision granted juvenile defendants many of the same due process rights afforded to adults, including the right to formal notification of the charges against them, the right against self-incrimination, the right to confront witnesses, and the right to counsel. While this was a huge victory for children and child’s rights advocates, the reality of the situation is decidedly less triumphant.

In most cases, the right to counsel “kicks in” just prior to the child’s initial detention hearing; at this point, the child and their parents are notified of their right to counsel and the child is appointed an attorney if the child is determined indigent. However, this is not the child’s first point of contact with the juvenile justice system—that would be when the child is first taken into custody. This is a critical point for the child, as things can potentially go very wrong if they do not have access to counsel at this early stage. Research has shown that children are far more susceptible to coercion than adults, so it is likely that a child may offer incriminating evidence upon being questioned, irrespective of their guilt or innocence. Furthermore, children typically lack a thorough (or in many cases, even cursory) understanding of how the justice system works, so it is imperative they have an advisor at every stage of the process to ensure their rights are protected.

To illustrate this point, one need only look to Fare v. Michael C. (1979), where the Supreme Court established that a juvenile’s right to counsel must be explicitly invoked. In this case, the child’s request to see their probation officer (a trusted adult) was deemed insufficient to invoke his Fifth Amendment right against self-incrimination, and therefore the child’s statements made during police interrogation were all admissible in court. But how can we expect children to know precisely whom to ask for help, and when? How are children supposed to know the right things to say, or not to say, when most adults in similar positions are equally unaware? The justice system is complex and the children who find themselves within it are often under a great deal of stress—not only from the experience itself, but also from outside influences such as their parents, police, prosecutors, and even judges. 

Furthermore, the notion that a child can waive their constitutional rights—in particular the right to counsel—is ludicrous, and such waivers should be per se unallowable. The decision giving juveniles the right to counsel in Gault was predicated on due process considerations, rather than the right to counsel guaranteed by the 6th Amendment. While an adult’s right to waive counsel in criminal proceedings arises out of the 6th Amendment, due process under the 14th Amendment does not necessitate the same result for juveniles. In fact, given the developmental differences between children and adults, it would be clearly out of line with due process considerations to allow juveniles to waive their right to counsel. The chances of obtaining a “voluntary,” “knowing” and “intelligent” waiver (as is required by law) from a child are severely diminished in consideration of the various stressors the child faces while in contact with the system. This, combined with the fact of the still-developing adolescent brain and compounded by the vital role of counsel in juvenile proceedings, make waiver of the right to representation totally inappropriate in these cases.

 If a child under these circumstances can waive their right to counsel, how can any of their other constitutional rights be guaranteed? Without an inalienable right to representation in delinquency proceedings, the due process considerations extended to juveniles in Gault are effectively meaningless. Therefore, the right to counsel should activate automatically and inviolably at the earliest stage possible to ensure that a child’s rights are protected throughout the entire juvenile justice process.

For a more thorough discussion on this topic, see:

Gary G. Strieker, Waiver of Constitutional Rights by Minors: A Question of Law or Fact, 19 Hastings L.J. 223 (1967). Available at: https://repository.uchastings.edu/hastings_law_journal/vol19/iss1/9

Ellen Marrus, Gault, 40 Years Later: Are We There Yet?, 44 Criminal Law Bulletin 413 (2008), U of Houston Law Center No. 2014-A-51. Available at: https://ssrn.com/abstract=2450171